SANDOVAL HEARING HELD IN DEFENDANT’S ABSENCE REQUIRED DISMISSAL OF THE INDICTMENT, PLACING THE RESULTS OF THE HEARING ON THE RECORD IN DEFENDANT’S PRESENCE DID NOT RECTIFY THE DEFECT.

The Fourth Department determined holding the Sandoval hearing in the defendant’s absence required dismissal of the indictment (without prejudice to file another charge):

We agree with defendant that Supreme Court erred in conducting the Sandoval hearing in his absence … . The court’s Sandoval ruling in this case was not wholly favorable to defendant, and thus “it cannot be said that defendant’s presence at the hearing would have been superfluous” … . Contrary to the People’s contention, although the court placed its Sandoval ruling on the record in defendant’s presence the morning after the hearing, “[a] mere repetition or recitation in the defendant’s presence of what has already been determined in [the defendant’s] absence is insufficient compliance with the Sandoval rule” … . People v Gardner, 2016 NY Slip Op 07469, 4th Dept 11-10-16

CRIMINAL LAW (SANDOVAL HEARING HELD IN DEFENDANT’S ABSENCE REQUIRED DISMISSAL OF THE INDICTMENT, PLACING THE RESULTS OF THE HEARING ON THE RECORD IN DEFENDANT’S PRESENCE DID NOT RECTIFY THE DEFECT)/SANDOVAL HEARING (SANDOVAL HEARING HELD IN DEFENDANT’S ABSENCE REQUIRED DISMISSAL OF THE INDICTMENT, PLACING THE RESULTS OF THE HEARING ON THE RECORD IN DEFENDANT’S PRESENCE DID NOT RECTIFY THE DEFECT)